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In 2016, William M. Haney (2) published an excellent comprehensive analysis of issues arising in connection with tribal sovereignty over tribal airspace in Protecting Tribal Skies: Why Indian Tribes Possess the Sovereign Authority to Regulate Tribal Airspace. In this first of its kind article, Mr. Haney analyzed the importance of tribal sovereignty in a tribe’s own airspace and described potential objections that may be raised by the Federal Aviation Administration. The Blogging Circle published an article by Sandra L. Shippey on November 11, 2016 summarizing Mr. Haney’s article and discussing some of these issues, but our reference and link to Mr. Haney’s article did not appear in our article until after a reader clicked through to the entire article. We decided to re-issue and expand on the original article with personal contributions from and more visible credit to Mr. Haney.

Mr. Haney acknowledges in his article that any nation is entitled to “complete and exclusive sovereignty over the airspace above its territory.” (3) He describes the unique sovereign status of Indian tribes in the United States as self-governing entities, which are also subject to the plenary power of the United States and regarded as “domestic dependent nations” under federal law. This status complicates the question of control over tribal airspace. (4)

To focus on these issues, Mr. Haney describes in his article a situation in 2009 with the Hualapai (wal-lah-pie) Tribe, a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon. (5) The Hualapai Tribe has an airport on its land and relies, in part, on tourism to fund its tribal government and for income for its members. (6) Currently, the Tribe offers tour packages that can include spectacular views from the “Skywalk” (a glass bridge that enables visitors to walk beyond the rim of the Grand Canyon 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation.

Mr. Haney relates a 2009 incident in which a non-Indian freelance tour guide and photographer, Lionel de Antoni, flew a fan-powered paraglider over the Hualapai reservation without permission from the Hualapai Tribe. Mr. de Antoni began and ended his flight over the reservation from federal land adjacent to the reservation. Mr. de Antoni operated a freelance tourism business from the federal land and would regularly fly over the Tribe’s reservation, organize tours, post photos and sell them. (7) He did not obtain permission from the Tribe to fly over the Tribe’s reservation. (8)

This matter raised interesting legal issues regarding the confluence of Native American law and federal aviation law. Mr. Haney describes these issues in his article:

A central point of discussion that quickly emerged was whether the Hualapai Tribe has jurisdictional authority to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe. Paul Charlton, an attorney representing the Hualapai Tribe in the case, stated plainly that the Hualapai Tribe has “the right to determine who will or will not fly over Hualapai territory.” A spokesman for the Federal Aviation Administration (“FAA”) initially told a reporter that “[a] tribe has no authority over airspace and cannot charge people for using it,” but did not elaborate on the legal basis for this claim other than to assert “[t]he federal government has sole jurisdiction over the nation’s airspace.” (9)

The Hualapai Tribe and Mr. De Antoni settled their case, and to date, there is no definitive statutory or case law on whether a Tribe has any sovereign control over the airspace above its reservation. The FAA has not acknowledged that Tribes possess any sovereign authority in tribal airspace. However, according to Mr. Haney, several Indian Tribes have asserted such a right in their respective constitutions and tribal codes or acknowledged their sovereignty over tribal airspace in their civil ordinances. (e.g. Potawatomi Nation, White Earth Nation, Snoqualmie Indian Tribe, Coquille Indian Tribe). (10)

According to Mr. Haney’s article, tribal governments, as sovereign entities, are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens. (11) They have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians. (12) The question is whether this right to exclude covers tribal airspace. Tribes could assert that air traffic above tribal lands could pose a risk or threat to tribal citizens or the tribal government (especially low flying aircraft). (13) Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft. (14) In the case of the Hualapai Tribe, the right to exclude could be for the purpose of protecting its own on-reservation airport from unauthorized flights and to control exploitation of its natural resources for unauthorized commercial gain that would protect tribal business interests. (15)

However, Mr. Haney acknowledges that there may be several potential objections to allowing tribal authority over tribal airspace. First, opponents may assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace. (16) Second, opponents may argue that Indian tribes “have been divested of sovereignty in airspace and assertion of tribal jurisdiction in airspace – particularly over non-members – is inconsistent with the domestic dependent status of Indian tribes under federal law.” (17) Third, opponents may argue that Indian tribes do not possess regulatory jurisdiction over non-member pilots and therefore cannot enforce tribal regulations in airspace. (18)

Mr. Haney also acknowledges that the FAA aviation regulatory system is the “global safety standard against which other national aviation systems are measured.” (19) Would allowing tribes to control airspace above their land jeopardize the safety of the traveling public?

Mr. Haney proposes political and regulatory solutions to “the uncertain status of the ability of tribes to regulate tribal airspace and he argues that a cooperative relationship between Indian tribes and the federal government is necessary to protect tribal interests and the integrity of domestic aviation activities.” (20) Mr. Haney ultimately concludes that “[a]s with many issues affecting Indian tribes, federal legislation could be the key to bringing clarity to these issues by affirming the authority of tribes to regulate at least some aspects of tribal airspace.” (21) He also advocates for a cooperative approach with the FAA, given the federal agency’s authority and expertise in matters involving air safety in the United States. (22)

In 2015, while an Associate Attorney at the law firm Berkey Williams LLP, Mr. Haney filed a public comment on the FAA’s then-proposed (and since finalized) drone regulations. In the letter, Mr. Haney asked the FAA to initiate formal consultation with Indian tribes as it developed the new airspace regulations. In its response to public comments, the FAA acknowledged Mr. Haney’s request and comments with the following reply:

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to uniquely or significantly affect their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this rule. However, the FAA has entered into government-to-government consultation with the Northern Arapaho Nation on its general use of UAS. In addition, the Nez Pierce tribe has contacted FAA to discuss obtaining a section 333 exemption to operate small UAS under existing rules.

… The FAA notes, however, that state governments have historically been able to regulate the takeoffs and landings of aircraft within their state boundaries. The FAA anticipates that the Tribes would be able to exercise similar internal sovereignty with regard to the takeoffs and landings of small UAS within their territories. Thus, while preemption is beyond the scope of this rule, the FAA will conduct outreach to tribes seeking information about their ability to regulate small UAS operations conducted within their territory to see how their concerns could be addressed within the broader UAS integration effort. (23)

On May 25, 2017, United States Senator Diane Feinstein introduced the Drone Federalism Act of 2017 in the United States Senate. The stated purpose of the Act is “[t]o preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.” (24) An acknowledgment of tribal concerns about the use of airspace by drones, the Act would require that the FAA, “[i]n prescribing regulations or standards related to civil unmanned aircraft systems, the [FAA] shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted [by federal regulation of airspace].” (25) The Act would also require the FAA to “preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments” in “prescribing regulations or standards related to civil unmanned aircraft systems…” (26)

According to Mr. Haney, the response by the FAA and the introduction of the Drone Federalism Act represent positive movement toward acknowledgment by the federal government that tribal governments have legitimate interests in regulating certain activities in tribal airspace. He believes that tribal governments have a real opportunity to work with their federal, state, and local counterparts to develop sensible solutions to airspace issues while respecting and promoting tribal sovereignty. Mr. Haney notes that the concerns of tribal governments about the uses of drones in airspace are shared by state and local governments, and that political movement toward the development of local regulatory solutions (27) presents a unique opportunity for tribes to align themselves with other governments on this issue.

Mr. Haney has raised some important issues and conflicts arising from Native American sovereignty and federal control of U.S. airspace. The FAA is not likely to easily accede jurisdiction over U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes. However, it would seem prudent for the FAA to work with tribes and allow them to realize sovereign control at least with respect to low flying flights over tribal lands or create regulations for flights over tribal lands, consistent with FAA standards.

Sandra Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee. Connect with Sandra at Sandra.shippey@procopio.com and 619.515.3226.

(1) This article was developed with editorial contributions and input from William M. Haney.

(2) William M. Haney is a Staff Attorney for the San Manuel Band of Mission Indians and the Treasurer of the California Indian Law Association. Mr. Haney is a graduate of the UCLA School of Law and is licensed to practice law in the state of California. During law school, Mr. Haney was a Staff Member and Associate Editor of the UCLA Law Review and served as Secretary and Alumni Chair of the UCLA Native American Law Students Association. His practice areas include tribal governance, economic development, environmental law, intellectual property, employment, real estate, the Indian Child Welfare Act, and the protection and promotion of tribal sovereignty. Mr. Haney is an enrolled member of the Seminole Nation of Oklahoma.

As we look forward to what 2017 may bring, we thought that it might be instructive to review our readers’ interests in 2016. Thanks to those more tech savvy than yours truly, I was able to determine that the Blogging Circle was read in 10 countries around the globe over the past year. Readers from the USA, Canada, Mexico, Chile, Brazil, India and Australia—all countries with active indigenous populations—were somewhat predictable, but gaining readership in in the UK, Italy and Ireland was a bit more surprising. It tells us that there is a diverse audience out there that is looking to learn more about Native American legal issues that may be applicable to their local situation, wherever that is.

What were people looking for? The top 10 Blogging Circle articles reviewed in 2016 were:

We appreciate your interest and hope that you enjoyed reading the Blogging Circle this year, and we look forward to surprising you with additional relevant, entertaining and newsworthy articles next year. Wishing you a happy, safe and prosperous New Year.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

The Hualapai (wal-lah-pie) Tribe is a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon. One of its tribal enterprises is Grand Canyon West on the Hualapai reservation at the west rim of the Grand Canyon. The Hualapai Tribe relies, in part, on tourism to fund its tribal government and for income for its members, and views from above are a large part of the tourist attraction. The Tribe offers tour packages that can include spectacular views from the “Skywalk” (a glass bridge that enables visitors to walk beyond the rim of the Grand Canyon at 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation. But how well is this commodity protected for the Tribe?

In 2009, a non-Indian freelance tour guide and photographer, Lionel de Antoni flew a fan-powered paraglider over the Hualapai reservation without the Tribe’s permission. Mr. de Antoni began and ended his flight over the reservation from federal land adjacent to the reservation. Mr. de Antoni operated a freelance tourism business from the federal land and would regularly fly over the Tribe’s reservation, organize tours, post photos and sell them. He did not obtain permission from the Tribe to fly over the Tribe’s reservation but did he gain financially from the airspace of the reservation?

This matter raised interesting legal issues regarding the confluence of Native American law and aviation law. Does the Hualapai Tribe have jurisdiction to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe? An attorney for the Hualapai Tribe believes that “[the Hualapai Tribe] has the right to determine who will or will not fly over Hualapai territory.” “The Federal Aviation Administration (FAA) says the tribe is overstepping its jurisdiction in fining the pilot as much as $25,000 for violating its airspace. “A tribe has no authority over airspace and cannot charge people for using it,” said FAA spokesman Ian Gregor. “The federal government has sole jurisdiction over the nation’s airspace.” [1]

The Tribe and Mr. De Antoni settled their case and as of yet, there is no statutory or case law on whether a Tribe has any sovereign control over the airspace above its reservation. The FAA has not acknowledged that Tribes possess any sovereign authority in tribal airspace. However, several Indian Tribes have asserted such a right in their respective constitutions and tribal codes or acknowledged their sovereignty over tribal airspace in their civil ordinances. (e.g. Potawatomi Nation, White Earth Nation, Snoqualmie Indian Tribe, Coquille Indian Tribe). [2]

As sovereign entities, tribal governments are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens. As sovereign entities, federally recognized Tribes have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians. The question is whether this right to exclude covers tribal airspace. Tribes could assert that air traffic above tribal lands could pose a risk or threat to tribal citizens or the tribal government (especially low flying aircraft). Also, Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft. In the case of the Hualapai Tribe, the right to exclude could be for the purpose of protecting its own on-reservation airport from unauthorized flights and to control exploitation of its natural resources for unauthorized commercial gain that would protect tribal business interests. By regulating the activity, the Tribal government could appropriately charge a fee for the use of its airspace.

However, others would assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace or that because Tribes are domestic dependent nations, their authority does not extend over their tribal airspace. We have even heard allegations that, since the FAA aviation regulatory system is the global standard and considered the safest national aviation system in the world, allowing Tribes to regulate tribal airspace could jeopardize safety. The United States government has a right to require Tribes to permit the free and safe passage of U.S. citizens and officials through reservations and tribal airspace is like a public highway in the sky; however, use of airspace for business purposes that are not transitory is a different situation.

The FAA is not likely to give up much jurisdiction over the greater U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes. However, it is possible that Tribes can realize sovereign control over low flying flights over tribal lands or create regulations for such flights over tribal lands, that are consistent with FAA standards.

We are not alone in exploring these areas of economic uses of Tribal airspace, directly or indirectly. See here and here.

[1] Ultralight pilot arrested for flying over tribal land published on January 22, 2009 by Janice Wood in the General Aviation News.

[2] Id.

Sandra Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee. Connect with Sandra at Sandra.shippey@procopio.com and 619.515.3226.

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By: Theodore J. Griswold | Partner | ted.griswold@procopio.com
Yesterday’s Winter Solstice marked the astronomical beginning of Winter and the shortest day of the year in the Northern Hemisphere. This special turning point in time offers us the perfect moment to break from our busy lives, visit with family and friends, and reflect on 2015 while looking forward to the New Year ahead. This is a great time to pause for a minute and enjoy a Holiday Circle– to appreciate and celebrate those special people who have helped to shape and enrich our lives and our future, and let them know about it.

Whatever your religion, custom, or beliefs, I encourage you to take a moment from your daily routine to celebrate life this week, and cherish your own personal Holiday Circle.

Lawyers and staff of Procopio’s Native American Law practice group thank you for your readership and wish you peace and prosperity in 2016.

Seminole Tribe of Florida Chairman James E. Billie, an ex-military and licensed pilot, used to land his plane on a desolate reservation road. His airplane allowed him to travel independently to and from the Seminole Tribe of Florida reservation as he worked to develop Tribal businesses. My, how things have changed. Today that road has become the Big Cypress Airfield. Privately owned by the Seminole Tribe of Florida, the airfield employs 18 staff members and is buzzing with 3 winged aircraft – including a 13 passenger Gulfstream IV – and 4 helicopters, and it is growing. It seems Chairman Billie was onto something.

The Seminole Tribe has begun to realize the business and governmental benefits of having its own airfield on its Reservation. Other tribes may want to take notice.

The operational costs of the Big Cypress Airfield are limited and the benefits substantial. The Tribal airfield uses existing reservation land, so there was no acquisition cost and no lease. Likewise, state property taxes on the airfield itself are not an issue and there are no state property or use taxes on the aircraft. Oh, and parking is free.

Many reservations struggle with a geographic challenge of isolation from business centers. The Seminole Tribe has mitigated this issue by making travel more efficient and flexible. The Big Cypress Airfield allows Tribal business leaders to use the Seminole Tribe’s own aircraft to visit its off-reservation business operations, conduct business, and attend intergovernmental meetings without being tied to a commercial airline schedule. This becomes important when Tribal executives are running both a business empire and a Nation. The Seminole Tribe has more than 4,000 citizens and booming businesses including the Hard Rock International purchased in 2007 from the Britain-based company Rank Group plc for an estimated $965 million. The unprecedented deal now includes 191 venues in 59 countries, including 145 Hard Rock Cafes, 21 Hard Rock Hotels and 10 casinos.

In addition, the Seminole Tribal government generates billions of dollars in economic impact in Florida and elsewhere through vendor contracts and indirect spending spun-off from its gaming and governmental operations, as well as its other business interests. For this tribal government, the efficiency of using its Aviation Department to fly Tribal executives to and from the Reservation is a valuable business tool for saving time and increasing revenues.

Tribal governmental services can be more efficient and immediate with the availability of aircraft. When West Nile virus was detected at the Brighton Reservation, the Seminole Tribe’s Aviation Department was able to immediately ramp up mosquito control with the Bell 206B helicopter through aerial applications of mosquito control throughout the reservation. Tribal citizens were quickly protected from encephalitis and other mosquito-borne illnesses.

The Big Cypress Airfield has long been used as a home base for fire suppression efforts. The Seminole Tribe, in conjunction with the Bureau of Indian Affairs, has created a fire suppression and response program that extends beyond the reservation jurisdictional boundaries. By servicing the surrounding community, the Tribe ensures the safety of both Native and non-Native communities.

The Aviation Department also supports the Seminole Police Department in providing aerial security on and off the reservation. During the Super Bowl activities at the Seminole Hard Rock Hotel, the Department provided aerial support for security and traffic control.

The Tribe also holds open houses at Big Cypress Airfield to inspire and attract Native youth to careers in aviation.

Tribal airfields and aircraft are not reserved for the largest of Tribal Nations. The benefits of a tribal airfield along with the right aircraft can assist even moderate sized reservations shorten the distance from the reservations to economic centers and the use of aircraft on and around the reservations can better serve tribal citizens. Does your reservation have a dusty road waiting for a new use?

A special thanks to Clinton A. El-Ramey, Director of the Aviation Department, at the Seminole Tribe of Florida, for his public service to Indian Country and the United States.

Sandy Shippey is co-chair of Procopio’s Aviation Practice Group and a member of the Native American Practice Group.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

I was recently invited to the sacred Summer Solstice Prayer Ceremony with the Comanche Nation. It took place on Medicine Bluffs on their traditional lands – a place surrounded by sage, a serene vista and on a bluff that allowed me to see for miles in the four directions. Elders shared with me that Medicine Bluffs is considered a place of puhu. In their Native language puhu means ‘medicine’ or ‘power.’ We had three generations of Native women there for a healing ceremony. It was incredibly peaceful. Until the sounds of artillery fire began…

You see – Medicine Bluffs is on federal land at Fort Sill, Oklahoma. And, despite this sacred time and ceremony for the Comanche people, the Army continued to detonate ordnances nearby. Sacred sites are not places of the past—they are of the present and the future, and must to be treated with the respect that recognizes this is true for churches, mosques and holy places worldwide.

This experience empowered me to intimately understand the necessity of protecting sacred sites. Since 2008 this land has been involved in a protracted legal battle with the federal government. The U.S. Army attempted to construct a warehouse on Medicine Bluffs. The cultural and religious significance of Medicine Bluffs to area tribes, especially the Comanche Nation and their citizens, has been well known by the Army for approximately 130 years, Comanche Chairman Wallace Coffey said in media statements. Had the Army been successful in its expansion plan and constructed the warehouse it would have unduly burdened the exercise of religious ceremonies of its citizens. The site was spared from physical damage, though it appears that the Army hasn’t quite come to grips with its sanctity during ceremonies.

Still, I was blessed to experience the puhu that day. And I am thankful to those who ensured its sacredness – and other critical spaces – for this generation and beyond.

During the NBA Finals, a television ad was aired that opposed using Native Americans as mascots, specifically targeted to the Washington Football Team.[1] The ad stated that Native Americans refer to themselves in many ways, “Indomitable, strong, Inuit, Blackfoot,” but they don’t refer to themselves as the R- word. It was particularly powerful in that it did not specifically state that R- word, but ended with a simple shot of a Washington helmet on a football field to convey the message. The ad was developed by the National Congress of American Indians, and paid for by the Yocha Dehe Wintun Nation tribe in California. It was targeted to be aired during the Superbowl, but extraordinary airtime costs kept it from being seen on television’s biggest forum.

This week, the U.S. Patent Office agreed with the ad’s sentiment, when it ruled that the R-word nickname is “disparaging to Native Americans” and that the six registered trademarks that involve the R-word must be canceled. The Trademark Trial and Appeal Board found that “substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame…” Blackhorse, et al v. Pro-Football, Inc., Cancellation No. 92046185, Board Decision, pg. 72 (June 18, 2014).

Momentum for the campaign to get Washington to change its nickname is building. Like so many social movements that succeed because of public pressure, this one may ultimately be victorious because the American people will finally say enough, or because the Washington Football team will get hit in its pocketbook when it can’t protect its team name from use by others. This issue may ultimately be resolved by financial cost, but money has nothing to do with why teams should stop using Native Americans as mascots.

It remains perplexing and sad that Native Americans are still being used as mascots all over the country, and that the R-word is still being used for that team in the Nation’s capitol. Advocates for using Native Americans as mascots state that Native American names and tribes are used in “respectful ways”, and it is done to “honor” the tribes by making them “positive mascots”. This contention misses the point. The point is that Native Americans are people, living and working in modern America. They are not a thought or an idea of what a Native American is, they are Native Americans. When a team uses a Native American tribe as a mascot, it is not allowing the American people to see Native Americans as everyday people in their communities. It is a dehumanizing effect that can be corrected.

The legal proceedings in Blackhorse will continue, as there is little doubt that the football team will appeal. However, public awareness can change. People can choose not to support the disparagement of Native American people as mascots by their individual actions. “Proud, forgotten, Indian. . . . rancher, teacher, doctor, soldier.” These are the appropriate images of Native America. Maybe over time this idea will sink in, and replace those archaic ones that are caricatures of a Native American.

Eric Abeita is a member of the Isleta Pueblo and is entering his third year at the University of New Mexico School of Law. Eric is a recipient of the 2014 Procopio Native American Internship.

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The Procopio Blogging Circle is created by the Procopio Native American Practice Group, its friends and its colleagues. Blogging Circle is a forum to share legal news and ideas affecting Native American Communities.

Although the information contained herein is provided by professionals at Procopio, the content and information should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought.